“Three top U.S. law firms, Wilson Sonsini Goodrich & Rosati, Gibson, Dunn & Crutcher, and Latham & Watkins, announced Monday they hired antitrust partners, signaling growing demand as regulators more closely scrutinize potential anticompetitive behavior,” reports Rebekah Mintzer in Bloomberg Law’s The United States Law Week.

“The four new hires have government antitrust enforcement experience that could be useful for clients facing an anticipated growth in scrutiny under the Biden administration and public debate about “breaking up” Big Tech and other industries.”

“According to data from Decipher, which performs due diligence for law firm hires, between November 2020 and January 2021 there have been 80% more antitrust lateral moves announced by Big Law compared to an average of the same period from the previous three years.”

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“Even for a company as big as Anthem Inc., the nation’s largest marketer of Blue Cross Blue Shield insurance, paying a half-billion-dollar settlement might seem like a painful way to resolve litigation,” reports Greg Andrews and Indianapolis Business Journal Staff in The Indiana Lawyer.

“But some investment analysts and health care observers say changes to Blue Cross Blue Shield rules that are stipulated in the settlement are so favorable to Indianapolis-based Anthem’s growth prospects that they view the deal as a huge win for the company.”

“The settlement, struck last fall and awaiting final approval in an Alabama federal court, resolves lawsuits filed in 2012 by insurance customers alleging the Chicago-based Blue Cross Blue Shield Association and the nation’s 36 Blue Cross and Blue Shield insurers violated antitrust laws through practices that limited competition and caused higher prices. The total settlement is $2.7 billion, with Anthem shouldering $594 million.”

Read the article.

“The Texas attorney general’s office has named The Lanier Law Firm and the law firm Keller Lenkner to the litigation team that would face off against Alphabet’s Google in an expected antitrust lawsuit, the office said on Tuesday,” reports Diane Bartz in Reuters’ Technology News.

“Texas, backed by other states, has long been expected to follow the Justice Department’s lawsuit against Google but unrelated allegations against Attorney General Ken Paxton of bribery and abuse of office led to the departure of several lawyers who were key to the Google investigation.”

“With the new hires, the Texas lawsuit could come as early as this month, according to a source familiar with the office’s planning.”

Read the article.

“The federal government is suing to block Visa’s $5.3 billion acquisition of fintech startup Plaid, alleging the merger violates antitrust laws,” reports Clare Duffy of CNN Business in KTEN News.

“Visa in January announced plans to acquire Plaid, which makes digital infrastructure linking financial data from people’s bank accounts to the apps they use to manage their money such as Venmo, Coinbase and Expensify.”

“The US Justice Department alleged Thursday that Visa is a ‘monopolist in online debit transactions’ — and a new service in development by Plaid could pose legitimate competition to Visa’s business, according to the complaint in US District Court in Northern California.”

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“The U.S. sued Google on Tuesday, accusing the $1 trillion company of illegally using its market muscle to hobble rivals in the biggest challenge to the power and influence of Big Tech in decades,” reports Diane Bartz and David Shepardson in Reuters U.S. Legal News.

“The Justice Department lawsuit could lead to the break-up of an iconic company that has become all but synonymous with the internet and assumed a central role in the day-to-day lives of billions of people around the globe.”

“The lawsuit marks the first time the U.S. has cracked down on a major tech company since it sued Microsoft Corp for anti-competitive practices in 1998. A settlement left the company intact, though the government’s prior foray into Big Tech anti-trust – the 1974 case against AT&T – led to the breakup of the Bell System.”

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“Pilgrim’s Pride Corporation … announced that it has entered into a plea agreement with the United States Department of Justice Antitrust Division in respect to its investigation into the sales of broiler chicken products in the United States,” posted Pilgram’s Investor Relations.

“In the plea agreement, which is subject to the approval of the United States District Court of Colorado, Pilgrim’s and the Antitrust Division agreed to a fine of $110,524,140 for restraint of competition that affected three contracts for the sale of chicken products to one customer in the United States. The agreement does not recommend a monitor, any restitution or probationary period, and provides that the Antitrust Division will bring no further charges against Pilgrim’s in this matter, provided the company complies with the terms and provisions of the agreement. Pilgrim’s expects to record the fine as a miscellaneous expense in its financial statements in the third quarter of 2020.”

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HP Inc. was awarded $439 million in damages against Quanta Storage Inc. and its U.S. subsidiary after a federal judge tripled a jury’s 2019 award for damages caused by a widespread scheme to inflate the price of optical disk drives, Bloomberg reports.

Sony, Panasonic and some other disk-drive makers settled with HP over the past decade. Only Taiwan-based Quanta chose to go to trial.

Quanta lost that trial in October when a Houston jury ordered Quanta to pay HP $176 million in damages. Now the federal judge in the case has tripled the damages award, as authorized under antitrust law, to $528 million before deducting $89 million in settlements paid by the other companies.

Read the Bloomberg article.

The former chief executive of Bumble Bee Foods LLC, Chris Lischewski, was found guilty of price-fixing on Tuesday, reports Bloomberg.

Prosecutors in a San Francisco court alleged that he conspired with colleagues and executives at rival companies on a “peace proposal” in order to boost prices and meet earnings targets set by Bumble Bee’s 2010 sale to Lion Capital, according to the report.

Bumble Bee pleaded guilty in 2017 to a felony charge of conspiring with competitors Starkist Co. and Chicken of the Sea Inc. to fix and raise prices of canned tuna in the U.S. from 2011 through at least late 2013.

Read the Reuters article.

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Roughly 40 state attorneys general plan to take part in a New York-led antitrust investigation of Facebook, reflecting a broadening belief among the country’s top Democrats and Republicans that the tech giant may be undermining its social-networking rivals, reports The Washington Post.

New York Attorney General Letitia James first announced a wide-ranging probe with seven other states and the District of Columbia to explore whether, in James’s words at the time, Facebook has “endangered consumer data, reduced the quality of consumers’ choices, or increased the price of advertising,” writes the Post‘s Tony Romm.

Sources told the newspaper that New York continues to solicit support from other states, meaning the number could grow before it is formally announced.

Read the Post article.

A recent FTC enforcement action clarifies the requirements for non-compete clauses in M&A agreements to fulfill certain requirements to comply with antitrust and competition laws, and serves as a reminder that U.S. antitrust authorities are actively reviewing these provisions, according to Orrick’s Antitrust Watch blog.

In the case, the Federal Trade Commission took issue with the non-compete clause in a purchase and sale agreement, which would have prohibited one seller from competing with the natural gas pipeline for three years.

Read the article.

The Antitrust Division of the U.S. Department of Justice recently announced a settlement of criminal charges against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. for having maintained agreements not to compete for each other’s employees, according to Locke Lord.

Authors Stephen P. Murphy and Joseph A. Farside Jr. write that one executive went so far as to state in an email that no-soliciting was a “prudent cause for both companies” and that the companies would “compete in the market.”

In announcing the settlement, an assistant AG noted that the criminal complaint was part of a broader Antitrust Division investigation into agreements not to compete for employees, typically known as no-solicit or no-poach agreements.

Read the article.

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The biggest U.S. antitrust case of this century kicked into high gear Thursday as a government lawyer warned that AT&T Inc. wants to buy media giant Time Warner Inc. to “weaponize” its must-have content — a move that would raise prices for consumers and hinder innovation, according to the Los Angeles Times.

In opening arguments, Justice Department lawyer Craig Conrath said AT&T could use Time Warner’s content as a weapon against competitors that rely on the programming.

Reporter Jim Puzzanghera writes: “AT&T’s added leverage over pay-TV competitors to withhold content from some of the most valuable assets in entertainment — including HBO, CNN, TBS, TNT and Warner Bros., Hollywood’s largest TV and film studio — would cause prices to rise by more than $400 million a year for Americans, Conrath said.”

Read the LA Times article.

The Antitrust Update of Patterson Belknap Webb & Tyler discusses a Federal Trade Commission case in which it appears an amicus brief may have been dispositive to the outcome of an appeal.

In Federal Trade Commission v. Penn State Hershey Medical Center, a group of 36 economists affiliated with top universities across the country filed an amicus brief explaining that the lower court used a faulty economic theory when it ruled against the FTC. The appellate court cited the brief when it reversed the district court.

Authors Jake Walter-Warner and Jonathan H. Hatch examine the brief’s influence on the appellate court and show how the court laid out the issues with the district court’s analysis just as the amicus brief did.

Read the article.

An assistant attorney general in the Department of Justice has warned that the DOJ would soon launch criminal enforcement actions against companies that have so-called “no poaching agreements” with each other, whereby they agree not to solicit one another’s employees, reports Bloomberg.

Makan Delrahim, assistant AG in the Antitrust Division, says his division has “been very active” in reviewing potential violations of the antitrust laws caused by these agreements and added that “in the coming couple of months,” the public “will see some announcements” of DOJ actions.

Writing for Bloomberg, three Seyfarth Shaw lawyers warn, “The bright line has now been drawn: Any violative anti-poaching policies after October 2016 expose employers to criminal punishment. In fact, for the DOJ Antirust Division, such enforcement actions might prove to be like shooting fish in a barrel.”

Read the Bloomberg article.

“There is no credible evidence” that AT&T’s proposed $85.4 billion acquisition of media powerhouse Time Warner poses any threat to industry competition or consumer prices, AT&T attorney Dan Petrocelli told CNBC on Tuesday.

Petrocelli is the lead outside counsel for AT&T in the case, in which the Department of Justice has sued to block the deal.

He cited increasing competition for television and video distribution and content as a reason not to block the proposed merger, writes reporter Matthew J. Belvedere.

“Earlier this month, reports circulated that the government had demanded AT&T sell its DirectTV unit or Time Warner’s Turner Broadcasting, operator of the CNN, as a condition of approval,” Belvedere explains. “However, the government had pushed back at those reports, and AT&T said it had no intention of selling CNN.”

Read the CNBC report.

Fortune reports that Intel has won a victory of sorts in its long-running fight against a €1.06 billion ($1.26 billion) antitrust fine that was levied against it by the European Commission eight years ago.

David Meyer writes that the Court of Justice of the European Union, the EU’s top court, on Wednesday set aside the 2014 ruling of the General Court, which upheld the 2009 fine, on the basis that the General Court had made a legal error.

“This does not mean Intel is off the hook — rather, it means the General Court needs to examine Intel’s legal arguments more closely than it did before, potentially giving Intel a chance to have the fine annulled or reduced,” Meyer explains.

Read the Fortune article.

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Timothy J. Muris has joined Sidley Austin LLP as senior counsel in the firm’s Antitrust/Competition practice.

Muris, a former chairman of the Federal Trade Commission (FTC), has experience inantitrust enforcement as well as in key consumer protection issues, including advertising, consumer finance and privacy regulation, the firm said in a release.

The release continues:

During his lengthy tenure with the FTC, Muris held multiple high-level posts and was the only person ever to direct both of the FTC’s enforcement bureaus. It was under his leadership that the FTC established the National Do Not Call Registry and brought numerous high-profile cases against firms for misusing government practices to raise prices. He also led the agency’s efforts to bring lawsuits against physicians for price-fixing and in challenging fraudulent and deceptive advertising and health claims to protect consumers. In addition, Muris is responsible for spearheading the FTC’s efforts to implement increased antitrust scrutiny of intellectual property issues and hospital mergers.

Muris has also spent a significant amount of time in private practice representing clients before the FTC, the U.S. Department of Justice and the European Commission as well as other domestic and international agencies. He regularly advises clients on antitrust issues in high-stakes mergers and acquisitions, as well as on important consumer protection issues pertaining to advertising, consumer finance and privacy. He serves as a George Mason University foundation professor at the Antonin Scalia Law School, a post he’s held since 1988.

“Tim is recognized as being among the best antitrust lawyers in the U.S. and we are delighted he chose to join Sidley,” said Mark Hopson, managing partner of Sidley’s Washington, D.C. office. “He’s earned the respect of both the business and government communities for his vast knowledge of antitrust and consumer protection practices. Having Tim on our team puts us in an enviable position and adds to our already considerable capabilities in helping clients navigate these challenging issues.”

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Lex Machina, a LexisNexis company,  announced the latest expansion of its Legal Analytics® platform into antitrust law, following its recent expansion into securities law in July.

In a release, the company said the move is part of the company’s ongoing plan to expand its Legal Analytics platform beyond intellectual property law to cover every federal practice area, including commercial, product liability, employment, commercial bankruptcy and more.

The release continues:

With the expansion, antitrust litigators will be able to use Legal Analytics to make data-driven decisions based on detailed information from more than 7,800 antitrust cases active since 2009 which have thus far resulted in more than $20 billion in damages awarded. The platform gives attorneys a competitive advantage in antitrust litigation by providing strategic insights about trends in antitrust case timing, resolutions, findings, damages and remedies, as well as actionable intelligence on opposing counsel, law firms, parties, judges, venues, and more. These capabilities also extend to Multidistrict Litigation (MDL) – complex cases that could potentially have hundreds of plaintiffs across dozens of jurisdictions.

“In antitrust litigation, where potentially billions of dollars and companies’ entire futures could be at stake, Legal Analytics for Antitrust helps law firms, in-house counsel and government attorneys develop winning case strategies and data-driven arguments based on the outcomes of thousands of prior cases,” said Josh Becker, CEO of Lex Machina. “The power of Legal Analytics truly becomes apparent in multidistrict litigation where untangling some of the more complex cases could encumber attorneys for months, instead of finding the desired insights in minutes.”

As part of the product development process, Lex Machina interviewed antitrust litigators from top law firms, major corporations and government agencies to better understand their particular antitrust needs. The product team incorporated their feedback directly into the new offering. Some of the new features include:
• Expanded case coverage: Attorneys can now analyze federal cases brought under the Sherman Act, Clayton Act, Robinson-Patman Act, or Federal Trade Commission Act.
• New data source and case linking: Existing Lex Machina case data is integrated with data from the Judicial Panel on Multidistrict Litigation to provide accurate MDL case counts. The platform also links procedurally connected cases to let attorneys analyze them in the right context.
• Antitrust findings analytics: New tags have been added for Class Actions, DOJ/FTC Enforcement cases, Robinson-Patman Act price discrimination cases, and cases where counterclaims were asserted.
• Enhanced case timing analytics: Median days have been added to Dismissal, Class Certification and Summary Judgment Orders — useful for budgeting, resource allocation and legal strategy.

Lex Machina’s Legal Analytics is a “must have” tool for litigators in many of America’s top law firms and corporations. Half of the AmLaw100 law firms use Lex Machina to craft successful litigation strategies, win cases and land new clients. Due to the depth and breadth of antitrust cases, which span every industry, Legal Analytics can help attorneys gain a competitive edge in antitrust litigation.

Prior to launch, Lex Machina mined all of the antitrust cases filed since 2009 and identified a number of important trends and insights, including:
• Judge Marianne Battani of the Eastern District of Michigan has handled the most antitrust cases (393 cases) since 2009 – more than twice as many as the next leading judge.
• The top defendants since 2009 include financial institutions like JPMorgan Chase & Co (270 cases), Goldman Sachs & Co (192 cases), UBS (188 cases), and Deutsche Bank (185 cases); electronics companies like Panasonic (265 cases) and Hitachi (253 cases); and several airlines, including Delta (231 cases), American Airlines (212 cases), Southwest (211 cases), and United Airlines (206 cases).
• Cotchett Pitre & McCarthy is the top law firm representing plaintiffs (255 cases), followed by Miller Canfield (248 cases), and Spector Roseman Kodroff & Willis (236 cases).
• Latham & Watkins (340 cases), Gibson Dunn & Crutcher (334 cases), and Freshfields Bruckhaus Deringer (294 cases) are the top law firms representing defendants.
• The median time to the grant of a permanent injunction is just under a year and a half (507 days).
• Judgments favoring the defense side – especially findings of “no antitrust injury,” “no Sherman Act violation § 1 (restraint of trade), and “no Sherman Act violation § 2 (monopolization) – tend to be issued as a judgment on the pleadings or as a summary judgment.

For more information about Lex Machina’s newest practice area and to get an early look at findings from Lex Machina’s first Antitrust Litigation Report, click here. Register here for Lex Machina’s half-hour launch webcast entitled “Legal Analytics for Antitrust Litigation,” scheduled for November 17th at 11:00 am PST (2:00pm EST).

Thomson Reuters is offering a complimentary copy of the 2016 edition of Practical Law’s study, Reverse Break-Up Fees and Specific Performance: A Survey of Remedies for Financing and Antitrust Failure.

This year’s edition analyzed all 85 merger agreements entered into in 2015 for debt-financed acquisitions of U.S. reporting companies in deals valued at $100 million or more. The study provides a detailed guide to the negotiation of remedies for buyer breach by:

• Examining how deal characteristics such as the size of the transaction and the profile of the buyer affect the negotiation of enforcement and monetary remedies.
• Reviewing the sizes of reverse break-up fees in leveraged deals as percentages of deal value and as multiples of the target company’s break-up fee, and compares reverse break-up fees that cap the damages payable by the buyer against those that do not.
• Analyzing other techniques for allocating risk in debt-financed transactions, including the buyer’s financing covenants, the definition of the lenders’ marketing period, and the agreement’s “Xerox” provisions.

New this year, the study contains a supplement analyzing antitrust-triggered reverse break-up fees and other mechanisms for allocating the risk of antitrust failure. For this inquiry, the study surveyed all 49 agreements in the Practical Law What’s Market M&A database for 2015 that contained a reverse break-up fee payable for antitrust failure. These included 27 agreements for the acquisition of a US reporting company in deals valued at $100 million or more and 22 publicly filed agreements for private M&A deals involving the acquisition of a US company or business valued at $25 million or more.

Download the study and receive free temporary access to Practical Law online resources.

The Federal Trade Commission (FTC) continues to aggressively enforce the antitrust laws, reports Melanie A. Hallas of McDermott Will & Emery.

“On April 27, 2016, the FTC took action against Victrex, plc and its wholly owned subsidiaries, Invibio, Inc. and Invibio Limited (collectively, Invibio) because of exclusivity terms in its supply contracts. The consent order requires Invibio to cease and desist from enforcing most of the exclusivity terms in its current supply contracts and generally prohibits Invibio from requiring exclusivity in future contracts. Invibio is also prohibited from using other pricing strategies, such as market-share discounts, that would effectively result in exclusivity,” she writes.

In her post, she explains that exclusivity terms that arguably have the effect of harming competition may raise antitrust concerns.

Read the article.